Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus

Harvey Silverglate
, ContributorI write about injustices in the justice system.Opinions expressed by Forbes Contributors are their own.

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Congress enactedthe Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which further raised the bar for repetitive habeas claims, and sothe federal courts again rebuffed MacDonald’s plea for review in 1997. The Court of Appeals in Richmond warned MacDonald’s lawyers (including me)toexercise caution before undertaking to file another petition.

MacDonald and his lawyersnonetheless persisted. Yet even as new evidence questioning his guilt mounted, lower courts were allowed to reject his requests for a new trial by relying on technicalities and viewing evidence in a piecemeal fashion. Finally, on April 19, 2011, the Court of Appeals for the Fourth Circuit ordered the lower court to sweep aside the technical barriers and, at long last, execute a “fresh analysis” of the “evidence as a whole”— hence the evidentiary hearing that took place last month in Wilmington.There has been much speculation over what prompted the Fourth Circuit court to take the dramatic step of ordering the lower court to review MacDonald’s conviction.Myown view is that the enormous accretion of evidence of innocence finally overcame the notoriously conservative court’s reluctance to disturb a conviction that for so long has been deemed “final.”

The combination of two factors in the MacDonald case, not likely replicated in others, accounts for this remarkable turn-around. First, court-ordered DNA tests of crime-scene evidence revealed specimens found on the wife and one daughter that matched no one in the MacDonald family, thus pointing to unknown outside assailants. Second, a retired deputy United States Marshal, diagnosed with terminal cancer, swore as he was dying that he witnessed one of the prosecutors threatening Helena Stoeckley at the time of the trial. She appeared prepared to testify that she was with three friends at the scene of the crime; after this prosecutorial intervention, she suddenly backed down and had amnesia.

Three decades and countless hearings after the guilty verdict, MacDonald finally won the right to present the full panoply of evidence supporting his innocence at the long-awaited hearing the week of September 17th. If, as some have predicted, thefederal district court judge in Wilmingtonagain rulesagainst MacDonald, the case will be back in the hands of the same Court of Appeals that finally saw the light and ordered the hearings after decades of judicial dawdling.

The enormity of the injustice done to Jeffrey MacDonald, as well as the case’s catastrophic effects on the criminal justice system as a whole, can be ascertained from a perusal of Academy Award-winning filmmaker Errol Morris’ recently released book, A Wilderness of Error: the Trials of Jeffrey MacDonald. Morris succeeded decades ago in helping free wrongly convicted Randall Dale Adams from death row with his 1988 film “The Thin Blue Line.” Now with A Wilderness of Error, Morris has aggregated a gigantic mass of evidence powerfully refuting the myths and lies that have kept Jeffrey MacDonald behind bars for 33 years. Morris’ book almost certainly will get noticed by the appellate court judges who ordered last month’s evidentiary hearing on the basis of the evidence accumulated before the book’s publication. A massive piece of investigative journalism that demonstrates a convict’s innocence, and the unfairness of the trial that arrived at the wrong conclusion, never escapes notice by the judges in whose hands is placed the power to redeem both the system and the wrongly-convicted defendant’s life.

This case should force a re-examination of current habeas corpuslaw and its Byzantine procedural obstacles. Itsfixing requires both legislative and judicial rethinking of the importance of juries and judges having access to the fullest array of available evidence. Currently, demonstration of “mere innocence” is not by itself deemed an adequate basis for release of a prisoner. Habeas corpus relief depends upon a combination of newly-discovered evidence plus a demonstration of innocence. And litigation over the meaning of “newly discovered” can itself take years and many trips up to appellate courts.

This notion should be condemned to the scrap heap of American judicial history. As University of VirginiaLaw Professor Brandon L. Garrett has written in his recent book, Convicting the Innocent, currently “the one claim that no convict can easily bring is a claim that he is innocent and should be freed for that reason alone.”

Garret’s work examines the common themes among the first 250 inmates that the Innocence Project, a nonprofit dedicated to exonerating the wrongfully convicted, has helped free to date, a development that owes its success in no small part to the advancement in DNA science. (The Innocence Project filed a friend-of-the-court brief supporting MacDonald.) Indeed, we’re living in an age of science and information, one that allows for the re-examination of verdicts often buried in history. But first the legal barriers to the presentation of facts—those most stubborn of things—must be removed. And when those facts add up to a picture of actual innocence, immediate release, rather than endless and obstructive procedural games, should be the result.